Re: Superintendent s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, dated December 15, 2011

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1 August 9, 2012 Cathryn MacFarlane Senior Manager Auto Insurance / Insurance and Cooperatives Policy Unit Frost Building North, 4th Floor 95 Grosvenor Street Toronto, ON, M7A 1Z1 Dear Ms. MacFarlane: Re: Superintendent s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule, dated December 15, 2011 The Ontario Association of Social Workers (OASW) is pleased to comment and to make recommendations related to the Superintendent s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule (herein referred to as the Superintendent s Report ) of December 15, 2011, which was made available to the public on June 12, Social work is a regulated profession under the Social Work and Social Service Work Act, The Ontario College of Social Workers and Social Service Workers are accountable to the Ministry of Community and Social Services. Social workers provide a number of services for claimants under the Statutory Accident Benefits Schedule (SABS) which include, but are not limited to, case management, individual and family assessment and intervention, psychotherapy, and vocational rehabilitation. As well, social workers often fulfill the role of primary therapist coordinating goals amongst various team members and referring clients to various services among different sectors of human services sectors (e.g. health, education, etc.). Social workers in the public service sector can also fulfil these roles as well as the role of a Primary Health Professional, coordinating referrals to health and community services as part of multidisciplinary teams in acute care, inpatient, outpatient and community-based settings. OASW consists of approximately 4200 members represented by 15 local branches across Ontario. Practising members are professional social workers with university degrees in social work at the doctoral, master s and baccalaureate levels. OASW s mandate is to address issues of interest or concern to social workers and client populations served by the profession, inclusive of individuals who have been in injured due to motor vehicle accidents. Motor vehicle accidents are one of the leading causes of death and disability in Canada (SMARTRISK, 2009). For the individuals who sustain serious injuries from a motor vehicle

2 accident, a return to their pre-accident activities of normal life and function can be dependent upon timely access to adequate, and often, specialized rehabilitation services (Ministry of Health and Long Term Care, 2006). This is particularly true for individuals who sustain neurological, complex orthopaedic or multi-system traumas. Many victims of motor vehicle accidents (e.g. individuals with brain injuries, chronic pain, severe orthopaedic injuries, spinal cord injuries, mental health diagnoses) will require prolonged and intensive rehabilitation support services, either on an ongoing basis, or an intermittent basis, due to chronic cognitive, physical and emotional impairments. It is OASW s position that the overriding spirit and intent of the legislation regarding the provision of rehabilitation benefits is articulated at Section 16 (1) of the SABS wherein it is stated that rehabilitation benefits shall pay for all reasonable and necessary expenses for activities and measures undertaken for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person s reintegration into his or her family, the rest of society and the labour market. In the Superintendent s Report, several proposed amendments to the definition of catastrophic impairment, are presented. The Superintendent highlights that the intention of the proposed amendments are to improve the fairness, accuracy and predictability of the process for determining catastrophic impairments by introducing elements of evidence- based medicine into the Ontario automobile insurance system. (p. 25). OASW supports amending the definition of catastrophic impairment in the SABS such that those who are seriously injured can have access to timely and reasonable medical and rehabilitation goods and services. OASW appreciates the efforts of the Superintendent, the Expert Panel, and all stakeholders, who have worked diligently to amend the definition of catastrophic impairment, which have been guided by the underpinning principles of: a) enabling individuals who are most seriously injured to be treated fairly and appropriately; b) enabling these individuals to have increased opportunity to receive the intensive and prolonged rehabilitation services they may require such that they are able to achieve better rehabilitative outcomes; and c) using evidenced-informed approaches for determining catastrophic impairment and subsequent treatment needs. In this review of the Superintendent s report, OASW is restricting its current response to the following four recommendations made by the Superintendent, that, if implemented in their current form, OASW believes will serve to impede consumers access to medical, rehabilitation and care benefits under the SABS. Although OASW is restricting its current response to these four recommendations, OASW supports many of the recommendations that have been previously articulated by other stakeholders in their reviews of the Expert Panel s recommendations and published on the FSCO website. As well, OASW supports recommendations submitted by the Coalition of Regulated Health Professional Associations, of which OASW is a member. Ontario Association of Social Workers, August 2012 Page 2

3 Superintendent s Recommendation 3.6: Psychiatric Impairments OASW agrees with the Superintendent s recommendations that a combination of factors should be considered in determining catastrophic eligibility criteria related to psychiatric impairment. However, OASW does not agree that utilizing the following criteria (lettering of the items, below, corresponds with the Superintendent s report) should be relied upon to a significant degree when determining the demonstrability and persuasiveness of the evidence that the claimant clearly requires substantial mental health care and support services : c) appropriate interventions and/or psychopharmacological medications such as: ECT, mood stabilizer medication, neuroleptic medications and/or such other medications that are primarily indicated for the treatment of severe psychiatric disorders; e) monitoring through scheduled in-person psychiatric follow-up reviews at a frequency equivalent to at least once per month; f) regular and frequent supervision and direction by community-based mental health services, using community funded mental health professionals to ensure proper hygiene, nutrition, compliance with prescribed medication and/or other forms of psychiatric therapeutic interventions, and safety for self or others. OASW s position is premised upon two major concerns related to the utilization of the abovenoted criteria with of individuals experiencing psychiatric/mental health impairments: 1) the underlying assumption that community-based, publicly funded mental health services exist, and are readily available to claimants who require them. In fact, OASW s experience informs us that there is a significant lack of publicly funded mental health and psychiatric services in the province and that in many communities, individuals facing significant mental health challenges are either: i) unable to receive such services whatsoever (because they do not exist in, or near to, their community); ii) face substantial waiting lists to receive psychiatric and mental health care; iii) are unable to receive monitoring and follow up care at the frequency schedule suggested by the Superintendent as indicated at once per month; or iv) face ineligibility for mental health services due to programs exclusionary criteria which commonly include, among other criteria, having a traumatic brain injury or chronic pain disorder. 2) the potential removal of the right to decide a) from whom they will receive mental health care (i.e., social workers, psychotherapists, psychologists, psychiatrists, or primary care physicians); b) the type of treatment that they will receive (e.g., counselling as opposed to medication); and c) the means by which these services are funded (e.g., some individuals may have access to privately-funded mental health care). They also should be allowed to Ontario Association of Social Workers, August 2012 Page 3

4 access services utilizing medical and rehabilitation benefits available to them under the SABS and not be forced to wait for publicly funded services to become available. Proposed Solutions: Amend criteria c) to include psychotherapeutic or psychosocial interventions as one of the listed appropriate interventions indicated for the treatment of severe psychiatric disorders. Amend criteria e) to include monitoring based upon what the treating professional and claimant agree is appropriate through scheduled, follow-up reviews undertaken by a professional who is qualified to treat mental and behavioural disorders, and scheduled at a frequency that is best suited to the individual s needs and takes into account the availability of services in their community. In-person follow-up criterion should be omitted since some individuals with mental health impairments (particularly those who reside in rural environments) may receive follow-up through other communications mediums, inclusive of telephone or web0based technologies (e.g., telehealth). Amend criteria f) to include use of or referral to community-funded or privatelyfunded mental health professionals to ensure proper hygiene, nutrition, compliance with prescribed medication and/or other forms of psychiatric therapeutic or psychosocial interventions, and safety for the claimant and/or others. Superintendent s Recommendation 3.6.1: Combining Psychiatric and Physical Impairments OASW s experience indicates that there is a large group of individuals with concurrent impairments who encounter problems receiving adequate rehabilitation support because their impairments do not meet the catastrophic threshold. Commonly, this includes individuals with mild to moderate brain injury, musculoskeletal impairments (e.g. chronic pain and/or mobility issues), and psychological or psychosocial impairments (e.g. adjustment disorders, depression, PTSD, family dysfunction and difficulties fulfilling roles). Due to the combined and cumulative impact of their impairments, these individuals often have significant difficulty resuming their activities of normal life and fully reintegrating into their family, academic/vocation, social, and other life-roles. Their recovery frequently requires prolonged multidisciplinary care which incorporates a biopsychosocial treatment approach. Following a motor vehicle accident, individuals may face many difficulties (physical, cognitive, behavioural, emotional, psychological, psychiatric, and psychosocial, including loss of employment). In many cases, these difficulties occur over time, exist concomitantly and impact the whole person across rehabilitation environments. 1 Confronted by chronic pain and the stress this creates, the individual also experiences a cascade of ongoing stressors that compromise all aspects of their life and this further taxes their emotional resilience as well as the capacity of their significant others, to provide support. 2 Ontario Association of Social Workers, August 2012 Page 4

5 In the Superintendent s Report, recommendations are premised on the Expert Panel s: assertion that there was no evidence in scientific studies to support the idea that combining physical and mental/behavioural conditions can be achieved in a valid and reliable way with currently available tools ; and, their difficulty understanding how combinations of physical and psychiatric conditions that occur independently meet the criteria for catastrophic impairment, thus being equated to a severe injury to the brain or spinal cord or to blindness. However, in accepting this rationale, the Superintendent accepted the Expert Panel s recommendation that the combining of physical and mental/behavioural impairments not be permitted. OASW is very concerned that the flawed premise underlying this recommendation result in a large group of individuals, who experience serious consequences and poor functional outcomes (which are precisely related to the combined and cumulative nature of their impairments) will be prevented from accessing the rehabilitative services they require, due to the limited funding available to them. To simply disqualify these individuals from receiving funding for their rehabilitation, without an alternative solution, is unacceptable. OASW contends that, for these individuals, the inability to return to their highest level of post-accident recovery would not necessarily be caused by ongoing disabilities related to their accident, but rather, by the lack of sufficient rehabilitation due to the inadequacy of the catastrophic impairment (or interim benefit) eligibility criteria. These individuals will face a significant risk of not reaching their maximum recovery potential and being unable to reintegrate into the workforce. Furthermore, this will place extraordinary and unnecessary pressure upon existing, publicly funded, health and social services to carry the burden of providing services to claimants who are unnecessarily and unfairly restricted from receiving the rehabilitative support they require. Proposed Solutions: Continue to allow psychological impairments to be combined with physical impairments in keeping with the rationale and approaches that have been established by the courts (inclusive of the Ontario Court of Appeal), in recent decisions (e.g. Desbiens v. Mordini [2004] O.J. No (S.C.J); Kusnierz v. Economical Mutual Insurance Co., 2011 ONCA 823)), until such time as an alternative suitable assessment approach is adopted. Superintendent s Recommendation 3.8: Interim Benefits OASW is pleased with the Superintendent s recommendation related to the availability of interim benefits to address need which, when qualified, would enable a claimant to have access of up to an additional $50,000 in coverage for medical, rehabilitation, and attendant care and assessment expenses. (p. 17). OASW agrees with the purpose and intent of interim benefits to ensure that certain claimants with serious injuries have access to rehabilitation to maximize their chances of achieving the fullest possible recovery, as cited by the Expert Panel. OASW asserts that, if the $50,000 in coverage is to provide for not only medical and rehabilitation benefits, but also, attendant care and assessment expenses, this amount may be insufficient to further the rehabilitation potential of claimants. Further clarification is required to Ontario Association of Social Workers, August 2012 Page 5

6 ascertain how the $50,000 will be divided between the benefit categories, as proposed by the Superintendent. Proposed Solutions: Consider the recommended $50,000 to be allocated exclusively for medical and rehabilitation benefits and assessments. Consider additional interim funding for attendant care benefits. Superintendent s Recommendation 3.8.1: Eligibility for Interim Benefits: OASW is pleased that the Superintendent is addressing the need for more benefits for adults who are seriously injured in motor vehicle accidents such as claimants who have experienced a traumatic brain injury and claimants with a 55% whole-person impairment rating. The Superintendent has recommended that eligibility criteria for interim benefits should include not only acceptance for admission to an inpatient rehabilitation program, but also admission to an out-patient or day-patient rehabilitation program, as an alternative. However, concerns remain as to whether admission to an out-patient or day-patient program, is a realistic criterion. Moreover, clarification is required with regard to what constitutes an out-patient rehabilitation program and day-patient rehabilitation program. The above concern is compounded by a recognized lack of hospital-based ambulatory and community rehabilitation services in the province of Ontario (Ministry of Health and Long Term Care, 2006). This is particularly true for adults and children with traumatic brain injury, mental health diagnoses, spinal cord injury, and chronic pain disorders, among others. Moreover, wait lists for admission to the limited existing programs can be lengthy. Furthermore, many communities in Ontario do not have specialized community-based outpatient/day programs that can be accessed by the claimants who require them. Payment for the services of allied health professionals, commonly involved in the rehabilitation process (social workers, occupational therapists, physiotherapists, psychologists, and speech language pathologists) are, by and large, not covered by publicly-funding when these services are provided outside of hospitals, e.g., in community-based or out-patient settings. While services provided by allied health professionals are offered through Community Care Access Centres (CCACs), they are not designed to provide intensive or prolonged rehabilitation services and remain extremely limited due to provincial budget constraints. Thus, for individuals who are injured in motor vehicle accidents, required rehabilitation services are primarily accessed through the motor vehicle insurance system. Proposed Solutions: Clarification of the definition of out-patient and day-patient rehabilitation programs should be provided such that it is inclusive of those that are funded through the Ministry Ontario Association of Social Workers, August 2012 Page 6

7 of Health as well as those funded through 3 rd party payments for services such as the medical and rehabilitation benefits available under the SABS. Eligibility criteria should be inclusive of admission to a day- or out-patient program, as well as application for admission to programs in keeping with recommendations provided by a regulated health professional. Eligibility for interim benefits should be granted if a claimant s treating physician makes a diagnosis which requires a particular course of community-based rehabilitation services. Superintendent s Recommendation 3.8.3: Management of Interim Benefits: OASW agrees with the Superintendent s recommendations that restricts the designation of catastrophic impairment status to physicians (and to neuropsychologists for individuals who have sustained brain impairment); however, OASW does not agree with the Superintendent s recommendation that interim benefits, intended for the seriously impaired claimant s rehabilitations, should be managed exclusively by the primary treating physician or that the primary physician should sign off on Treatment and Assessment Plans (OCF-18 s) which requests access to interim benefits. It is OASW s view that, while medical doctors have the skill to fulfill this role, they are not always the most appropriate professional to do so. This is not to say that a treating physician should not do so in circumstances which make the most sense to the individual; however, a number of problems are associated with this model. Many of these concerns were articulated during the 5-Year Review of the Insurance Act at which time a similar role for primary physicians was proposed, and subsequently omitted from the statutory changes that took effect on September 1, Many of OASW s concerns, expressed in our submission to the Ministry of Finance on May 13, 2009, in response to the Financial Services Commission of Ontario s Report on the 5-Year Review in 2009, remain and are as follows: A large number of Ontarians do not have family doctors and/or are not connected to medical specialists. Figures released by the Ontario Medical Association in 2012 cite that over 927,000 patients in Ontario still do not have a family doctor. A large number of Ontarians attend walk-in clinics. Physicians providing care at these clinics do not take on the role or responsibility for managing rehabilitative care. For individuals who have family doctors or specialists, accessing them for the timely completion of forms, is not always possible. Our experience indicates that it can take from six months to over a year to receive an appointment with physicians who specialize in the rehabilitation service required for individuals who have sustained serious injuries in motor vehicle accidents, such as traumatic brain injury (e.g. physiatrist, neuropsychiatrist, etc.). Ontario Association of Social Workers, August 2012 Page 7

8 Not all medical doctors are registered with HCAI. Not all medical doctors understand the SABS and their role in enabling patients to access the medical and rehabilitation benefits available under the SABS. Not all medical doctors are familiar with SABS forms and our experience indicates that many refuse to sign OCF 18 s because they lack knowledge regarding the purpose and intent of the forms and due to professional liability concerns. The majority of medical doctors do not have the time or resources to meet the demands required to fulfil the role of managing their patients rehabilitation. Medical doctors depend upon social workers and case managers to fulfil the role of managing rehabilitation resources effectively and efficiently, and to make recommendations in regard to an individual s rehabilitative and care needs. Family doctors are not typically trained in the field of rehabilitation. Costs will be added to the insurance system, as medical doctors would need to be compensated for fulfilling the role of managing the interim benefits, and for completing/signing-off on, at a minimum, the initial OCF 18 s for all recommended rehabilitation services. Proposed Solutions: Regulated social workers and other regulated health professionals, as defined in the SABS, who are qualified to provide case management services, should be utilized to provide appropriate rehabilitation programs and plans, which incorporate input from treating physicians and provide a collaborative and integrative approach to client care. This model and approach is currently utilized by the CCAC in managing their rehabilitation and care resources. Social workers are currently capable of fulfilling the role and responsibility of managing the interim benefits in communities across the province, given the profession knowledge of existing systems and resources. This is among the roles that social workers are taught to fulfil during graduate school education which focuses upon a strong knowledge and ethical base, and is in keeping with social workers scope of practice. As a regulated profession, social workers are able to skilfully fulfil this role because they are: o Currently acknowledged and authorized under the SABS to develop and supervise treatment plans (OCF 18 s) for the purpose of initiating an assessment, and providing social work treatment and services. This is already in place. o Familiar with, and knowledgeable about, the regulations under the SABS, and superintendent s guidelines, in adherence to the Standards of Practice and Code of Ethics, as required by our regulatory College. Ontario Association of Social Workers, August 2012 Page 8

9 o Well-versed in working collaboratively with members of the medical community, and other sectors which provide services to individuals who are injured in motor vehicle accidents. o Already fulfilling the role of case management in both the health and social service systems. For example, social workers fulfil this role as part of multidisciplinary teams within hospitals, Family Health Teams, rehabilitation teams, and mental health teams, among others. o Well-versed in regards to relevant legislation and regulations governing the provision of services at various levels of government. o Highly knowledgeable in regards to resources and access points for health and social services. o Competent to work with all age groups; cultural and gender diversity; and a wide range of illness and disabilities in order to identify and access reasonable and necessary goods and services. o Subject to provincial legislation that protects the public from incompetent, unethical and/or fraudulent behaviour by providing complaints mechanism to address such concerns. It is worth noting that, to date, the Ontario College of Social Workers and Social Service Workers (OCSWSSW) has not received a complaint of fraud by social workers who work under the SABS. o Able to follow superintendent s guidelines with knowledge and ethical standards that apply to the role of managing the interim benefits. Case management services should be provided to individuals who are eligible for receiving interim benefits. Social Workers should be included in the list of professionals qualified to certify treatment plans (OCF 18 s) under Part 4. Conclusion: Unintentional injury, as a result of motor vehicle accidents (MVA), remains one of the leading causes of both permanent partial and total disability in Canada (SMARTRISK, 2009). These accidents also have the highest associated indirect social costs (i.e., costs related to reduce productivity from hospitalization, disability and premature death) in comparison to all other causes of injury (SMARTRISK, 2009). By providing individuals, seriously injured in motor vehicle accidents, the opportunity to access sufficient financial resources for rehabilitation services, such that they can reach their maximum rehabilitation potential, it is expected that the cost burden to society as a whole would reduce (e.g. by improving employability, reducing statefunded health and social-care costs, etc.). OASW believes that the medical and rehabilitation services that can be accessed through the motor vehicle insurance system are of great significance. Equally important is the legislative Ontario Association of Social Workers, August 2012 Page 9

10 policy surrounding these services, inclusive of the proposed amendments to the definition of catastrophic impairment, since this has the potential to influence the ultimate health and recovery outcomes for individuals who are injured in motor vehicle accidents. For this reason, OASW believes that it is crucially important for government to closely examine the proposed recommendations and comments provided by the stakeholders, including those herein reflected by OASW. Sincerely, Joan MacKenzie Davies, MSW, RSW Executive Director Marla Feldman, MSW, RSW OASW Auto Insurance Liaison Footnotes: 1 Bowen, A., Chamberlain, A., Neuman, V., & Tenant, A. (1999). Evaluation of a community-based neuropsychological rehabilitation service for people with traumatic brain injury. Neurorehabilitation, Swanson, K., Tunks, E., & Turk D. (2008). Psychological approaches in the treatment of chronic pain patient: When pills, scapels, and needles are not enough. The Canadian Journal of Psychiatry, 53(4), References: Ministry of Health and Long Term Care. (2006). Report of the Trauma Expert Panel. Toronto, ON: Ministry of Health and Long Term Care. SMARTRISK. (2009). The Economic Burden of Injury in Canada. Toronto, ON: SMARTRISK. Ontario Association of Social Workers, August 2012 Page 10